Client Support
1-855-528-1908
Contact Us
Contact Us

Terms Of Service

CYBROGENIT CUSTOMER TERMS OF SERVICE "Agreement"

Last updated: April 5, 2024 9:06 AM

This Terms of Service (“Agreement”) outlines the terms and conditions that govern the use of CybrogenIT’s IT and Cybersecurity services (collectively, “Services”). By purchasing CybrogenIT’s products or Services or clicking “I Agree” at the time of payment, you (“Customer”) are entering into a binding agreement with CybrogenIT LLC, its members, officers, employees, agents, contractors, successors, and assigns (collectively, “Company”).

Please read this Agreement carefully before proceeding. By accepting these terms, you represent, warrant, and agree that you have read, understood, and consent to be bound by these terms on your behalf and, if applicable, on behalf of your organization. Company may modify these terms at any time, and it is your responsibility to stay informed of changes by reviewing the updated Agreement on the Company’s website.

1. DESCRIPTION OF SERVICES

CybrogenIT provides IT and Cybersecurity services, including but not limited to:

  • Managed IT services
  • Cybersecurity assessments and risk management
  • Network monitoring and maintenance
  • Data backup and disaster recovery
  • Endpoint security and management
  • IT consulting and cyber insurance advisory services

Your subscription includes specific features or service levels as outlined in your agreement or invoice at the time of purchase. CybrogenIT provides comprehensive IT and Cybersecurity services, tailored to the needs of small and medium-sized businesses. The services offered under this Agreement include, but are not limited to, the following:

1.1. Managed IT Services

  • Description: Proactive monitoring and management of Customer’s IT infrastructure to ensure optimal performance and minimize downtime.
  • Features:
    • 24/7 system monitoring and alert response
    • Network and device maintenance
    • Routine software updates and patches
    • Asset inventory and lifecycle management
  • KPIs:
    • Network Uptime: Guaranteed 99.9% uptime on monitored networks.
    • Issue Resolution Time: Average resolution time for non-critical tickets under 8 hours.
    • Preventative Maintenance: At least 95% of identified maintenance tasks completed monthly.
  • SLA:
    • Critical issues (e.g., system outages) will be acknowledged within 15 minutes and resolved within 4 hours.
    • High-priority tickets (e.g., degraded performance) will be acknowledged within 1 hour and resolved within 8 hours.
    • Normal tickets (e.g., user access issues) will be acknowledged within 4 hours and resolved within 24 hours.

1.2. Cybersecurity Services

  • Description: Comprehensive cybersecurity solutions to safeguard Customer’s data, infrastructure, and systems from threats.
  • Features:
    • Vulnerability assessments and penetration testing
    • Endpoint protection, firewall management, and intrusion detection
    • Security awareness training for employees
    • Incident response planning and execution
  • KPIs:
    • Response Time for Security Threats: Initial response to incidents within 15 minutes.
    • Vulnerability Management: All high-risk vulnerabilities remediated within 72 hours.
    • Employee Training Compliance: 95% of designated employees complete training within agreed timelines.
  • SLA:
    • Security incidents will be triaged and addressed within 2 hours of detection.
    • Threats flagged by automated monitoring systems will be analyzed within 1 hour.

1.3. Data Backup and Disaster Recovery

  • Description: Ensuring data integrity and system continuity through robust backup and disaster recovery solutions.
  • Features:
    • Daily data backups with verification
    • Disaster recovery planning and drills
    • Rapid recovery services for critical systems and data
  • KPIs:
    • Backup Success Rate: 99.5% of scheduled backups complete successfully.
    • Recovery Time Objective (RTO): Critical systems restored within 2 hours.
    • Recovery Point Objective (RPO): Data loss limited to a maximum of 15 minutes of transactions.
  • SLA:
    • Backup failures will be identified and rectified within 4 hours.
    • Disaster recovery exercises will be conducted annually, with a report provided within 5 business days.

1.4. Endpoint Management

  • Description: Management of Customer devices, ensuring compliance, security, and efficient operation.
  • Features:
    • Remote monitoring and control of desktops, laptops, and mobile devices
    • Patch management for all endpoints
    • Device encryption and security configuration
  • KPIs:
    • Patch Compliance Rate: 100% of critical patches applied within 48 hours of release.
    • Endpoint Security: Zero critical incidents due to unpatched vulnerabilities on managed devices.
  • SLA:
    • Devices with identified security vulnerabilities will be patched within 2 business days.
    • Configuration changes will be implemented within 24 hours of request.

1.5. IT Consulting and Strategy

  • Description: Strategic IT planning and consulting services to align technology with Customer’s business goals.
  • Features:
    • Quarterly technology reviews and roadmap planning
    • Budget recommendations for IT investments
    • Analysis of emerging technologies and trends
  • KPIs:
    • Customer Satisfaction: Achieve at least 90% positive feedback from consultation sessions.
    • Adherence to Roadmap: 95% of planned milestones completed within agreed timelines.
  • SLA:
    • Consultation requests responded to within 2 business days.
    • Quarterly review meetings scheduled at least 30 days in advance.

1.6. Compliance and Regulatory Support

  • Description: Support for meeting industry compliance standards such as HIPAA, GDPR, or CCPA.
  • Features:
    • Compliance gap analysis and remediation planning
    • Preparation for third-party audits
    • Ongoing monitoring for compliance adherence
  • KPIs:
    • Compliance Monitoring: 100% of monitored systems adhere to compliance requirements.
    • Audit Readiness: All pre-audit deliverables provided at least 5 days before deadlines.
  • SLA:
    • Initial compliance assessments delivered within 30 days of onboarding.
    • Compliance issue resolutions addressed within 5 business days unless otherwise agreed.

1.7. Key Service Metrics Reporting

CybrogenIT will provide detailed reports to Customers on the following metrics:

  • Monthly Service Report: Includes ticket resolution times, network uptime, and SLA compliance metrics.
  • Quarterly Business Review: A strategic analysis of IT performance, risks, and future recommendations.
  • Incident Reports: Detailed logs for all critical security incidents or outages, provided within 24 hours of resolution.

1.8. Limitations of Services

While CybrogenIT is committed to meeting all agreed KPIs and SLA terms, Customer acknowledges the following limitations:

  • Services dependent on third-party providers (e.g., internet service, cloud platforms) may be subject to delays or issues beyond the Company’s control.
  • Customer must promptly provide necessary access, documentation, and approvals for certain Services to proceed without delays.

2. TERM AND RENEWAL

2.1 Initial Term

This Agreement shall commence on the date of acceptance by the Customer, either through electronic agreement during the payment process or upon signing an official agreement with CybrogenIT (the “Effective Date”). The Initial Term of this Agreement is one (1) year.

2.2 Renewal Term

Upon the expiration of the Initial Term, this Agreement will automatically renew on a month-to-month basis (the “Renewal Term”) unless terminated by either party in accordance with the terms outlined in Section 8.

  • Notice of Renewal: The Customer will receive a reminder of the pending renewal at least thirty (30) days prior to the expiration of the Initial Term.
  • Modification of Terms: Company reserves the right to update the terms of this Agreement, including service rates, prior to the commencement of the Renewal Term. Any changes will be communicated to the Customer at least thirty (30) days in advance.
  • Customer Acknowledgment: Continued use of the Services after renewal constitutes the Customer’s acceptance of the updated terms.

2.3 Termination at Renewal

Either party may opt not to renew this Agreement by providing written notice at least thirty (30) days prior to the expiration of the Initial Term or any subsequent Renewal Term.

2.4 Early Termination

If the Customer terminates the Agreement during the Initial Term without cause, the Customer shall be liable for an Early Termination Fee equal to:

  • The remaining fees due for the balance of the Initial Term, or
  • A flat fee of three (3) months of Services, whichever is less.

This provision ensures the Company is compensated for resource allocation and planning for the duration of the Initial Term.

2.5 Price Adjustments Upon Renewal

  • Initial Term Pricing Lock: The pricing agreed upon at the Effective Date will remain fixed for the duration of the Initial Term.
  • Renewal Pricing: At the start of the Renewal Term, Company reserves the right to adjust pricing for Services based on:
    • Industry standards and inflation
    • Changes in the scope or level of Services provided
    • Additional Customer requests or modifications to the Agreement
  • Customers will receive a minimum of thirty (30) days’ notice of any price changes.

2.6 Service Adjustments During Renewal

  • Customers may request modifications to the scope of Services during the Renewal Term, subject to mutual agreement.
  • If additional Services are added during the Renewal Term, the pricing for these Services will be prorated and added to the existing monthly billing cycle.
  • Reductions in Services or scope must be agreed upon in writing and may not be effective until the next billing cycle.

2.7 Impact of Delinquent Payments on Renewal

  • If the Customer has an outstanding balance at the end of the Initial Term or any Renewal Term, Company reserves the right to withhold renewal or suspend Services until payment is received in full.
  • Late payment fees will apply in accordance with Section 3.3.

2.8 Transition Support Upon Non-Renewal

If the Customer opts not to renew this Agreement, CybrogenIT will provide reasonable transition support to ensure continuity for the Customer. This includes:

  • Access to documentation and data migration assistance for a period of thirty (30) days following the termination of Services.
  • Transition support services beyond the thirty (30)-day period may be provided at an additional hourly rate, to be agreed upon in writing.

2.9 Non-Renewal by the Company

Company may choose not to renew this Agreement by providing the Customer with a minimum of thirty (30) days’ written notice before the end of the Initial Term or any Renewal Term.

3. FEES, PAYMENTS, AND TAXES

3.1 Fees

The Customer agrees to pay all fees associated with the Services as specified in the applicable invoice, online order confirmation, or signed agreement.

  • Service Fees: These include but are not limited to charges for Managed IT Services, Cybersecurity Services, Data Backup, and any other agreed-upon services.
  • Onboarding Fee: A one-time, non-refundable fee for the initial setup and integration of the Services.
  • Ad Hoc Fees: Fees for additional, one-time services requested by the Customer, such as emergency incident response, additional data storage, or consulting outside the agreed scope.
  • Usage Fees: Any overage charges incurred by exceeding predefined limits (e.g., additional devices, users, or bandwidth). These will be detailed in advance and invoiced accordingly.

3.2 Payment Terms

  • Billing Cycle: Fees for Services are billed on a recurring basis, either monthly or annually, as specified in the Customer’s subscription plan. Billing will begin on the Effective Date of this Agreement.
  • Payment Methods: The Customer is required to provide and maintain a valid payment method (credit card or ACH) on file.
  • Automatic Payments: The Customer authorizes CybrogenIT to automatically charge the payment method on file for all recurring fees and any applicable Usage or Ad Hoc Fees.
  • Invoices and Receipts: An electronic receipt or invoice will be provided to the Customer for all transactions.

3.3 Payment Deadlines

  • Due Date: Payments are due on the first day of each billing cycle.
  • Grace Period: The Customer has a grace period of five (5) calendar days to submit payment without penalty.

3.4 Late Payments and Fees

If payment is not received by the due date:

  • A Late Payment Fee of 1.5% of the overdue amount per month (or the maximum rate permitted under Delaware law) will be assessed.
  • The Company reserves the right to:
    • Suspend Services until payment is received in full.
    • Terminate the Agreement if payments are more than thirty (30) days overdue.

In the event of termination due to non-payment, all outstanding balances for the Initial Term or Renewal Term become immediately due.

3.5 Disputed Charges

If the Customer disputes any portion of an invoice, they must notify CybrogenIT in writing within ten (10) business days of receipt.

  • The notice must include a detailed description of the disputed amount and reason for the dispute.
  • The Customer agrees to pay the undisputed portion of the invoice by the due date.
  • CybrogenIT will work in good faith to resolve the dispute within fifteen (15) business days.

Failure to notify the Company within the specified time frame constitutes a waiver of the right to dispute the charges.

3.6 Taxes

  • Customer Responsibility: The Customer is responsible for paying all applicable taxes, levies, and government-imposed fees related to the Services. This includes but is not limited to sales tax, use tax, and value-added tax (VAT).
  • Tax Exemptions: If the Customer is exempt from taxes, a valid tax exemption certificate must be provided to the Company prior to billing.
  • Withholding Taxes: If applicable law requires the Customer to withhold taxes from any payment to the Company, the Customer must provide the Company with valid documentation and is responsible for remitting the withholding taxes to the appropriate authorities.

3.7 Fee Adjustments

  • Annual Fee Review: Fees are subject to review and adjustment at the end of the Initial Term or any Renewal Term. Customers will receive at least thirty (30) days’ written notice of any fee adjustments.
  • Scope Adjustments: If the Customer requests changes to the scope of Services, CybrogenIT reserves the right to adjust fees to reflect the additional resources or time required.

3.8 Refund Policy

  • All payments are non-refundable, except in the event of a termination initiated by CybrogenIT without cause, where a prorated refund for unused Services will be issued.
  • Onboarding fees and any Ad Hoc Fees for services already rendered are not eligible for refunds under any circumstances.

3.9 Additional Payment Terms

  • Reinstatement Fee: If Services are suspended due to non-payment, the Customer must pay all overdue amounts and a reinstatement fee of $200 to reactivate Services.
  • Advance Payment Requirement: For Customers with a history of late payments, CybrogenIT may require advance payment for future billing cycles.
  • Collections: In the event of non-payment, CybrogenIT reserves the right to refer the account to a third-party collections agency. The Customer will be responsible for all costs associated with collections, including legal fees.

3.10 Currency and Exchange Rates

All fees and payments are processed in United States Dollars (USD). Customers located outside the United States are responsible for any currency conversion fees or exchange rate fluctuations.

4. CUSTOMER OBLIGATIONS

4.1 Access and Cooperation

To enable CybrogenIT to provide the Services effectively, the Customer agrees to:

  • Grant Access: Provide CybrogenIT with timely and secure access to necessary systems, hardware, software, and documentation. This includes but is not limited to:
    • Administrative access to servers, networks, and other IT infrastructure.
    • Credentials for authorized personnel and systems as needed.
  • Point of Contact: Designate a primary point of contact with decision-making authority to coordinate with CybrogenIT during the Service term.
  • Timely Responses: Respond promptly to requests for information, approvals, or access required for the delivery of Services. Delays may result in adjusted timelines or additional fees.
  • Environment Setup: Ensure that Customer premises, if applicable, are adequately prepared for on-site work, including providing workstations, network access, and necessary equipment.

Failure to provide timely access or cooperation may result in delays, additional costs, or CybrogenIT’s inability to meet Service Level Agreements (SLAs).

4.2 System Compatibility

The Customer is responsible for maintaining systems that are compatible with CybrogenIT’s Services. This includes:

  • Hardware: Ensuring all hardware meets the minimum specifications provided by CybrogenIT.
  • Software: Keeping all operating systems, applications, and third-party tools up to date and compliant with CybrogenIT’s recommendations.
  • Licensing: Maintaining valid licenses for all software and applications that CybrogenIT manages or integrates.

Incompatibility or non-compliance with these requirements may limit the scope of support or functionality CybrogenIT can provide.

4.3 Data and Backup Responsibilities

  • Data Ownership: The Customer retains full ownership of their data. CybrogenIT is not responsible for the content, legality, or accuracy of the data provided by the Customer.
  • Data Backup: While CybrogenIT provides backup solutions as part of its Services, the Customer agrees to:
    • Perform routine checks on backup files to ensure completeness and accuracy.
    • Maintain their own local backup copies of critical data as an additional safeguard.

4.4 Compliance

The Customer agrees to comply with all applicable laws, regulations, and industry standards in their use of the Services, including but not limited to:

  • Data Protection Laws: Adhering to data privacy regulations such as GDPR, HIPAA, or CCPA, as applicable.
  • Software Licenses: Ensuring all third-party software used with CybrogenIT Services is properly licensed.
  • Acceptable Use Policy: Refraining from using CybrogenIT’s Services to engage in:
    • Illegal activities.
    • Distribution of malicious code, spam, or unauthorized access attempts.
    • Activities that infringe upon the intellectual property rights of others.

4.5 Security Obligations

The Customer is responsible for taking reasonable precautions to secure their IT environment, including:

  • Credential Security: Protecting login credentials, passwords, and other sensitive access details from unauthorized access.
  • Physical Security: Ensuring that hardware and systems located on Customer premises are physically secure.
  • Incident Reporting: Notifying CybrogenIT immediately upon discovery of a security breach, unauthorized access, or other incidents that may impact the Services.

CybrogenIT is not responsible for incidents arising from the Customer’s failure to maintain adequate security measures.

4.6 Authorized Users

The Customer agrees to ensure that all individuals accessing CybrogenIT’s Services (e.g., employees, contractors) are:

  • Properly trained on the use of systems and tools.
  • Acting within the scope of their authorized roles.
  • Complying with the terms of this Agreement.

The Customer is fully liable for the actions or omissions of their authorized users.

4.7 Change Management

If the Customer makes changes to their IT environment that impact the Services (e.g., replacing hardware, changing ISPs, upgrading software), they agree to:

  • Notify CybrogenIT at least five (5) business days in advance.
  • Allow CybrogenIT to evaluate the impact of such changes and provide recommendations.

Failure to notify CybrogenIT of such changes may result in delays, additional fees, or degraded Service performance.

4.8 Customer-Owned Equipment

If the Services require CybrogenIT to manage Customer-owned equipment, the Customer agrees to:

  • Ensure that all equipment is properly maintained and in working order.
  • Provide replacements for hardware that is no longer functional or outdated.
  • Permit CybrogenIT to perform necessary upgrades or repairs, subject to prior approval.

4.9 Communication

The Customer agrees to maintain clear and open lines of communication with CybrogenIT, including:

  • Keeping contact information up to date, including email addresses and phone numbers for key personnel.
  • Informing CybrogenIT of any organizational changes that may impact Service delivery, such as personnel turnover or changes in management.

4.10 Limitations on Customer Actions

The Customer shall not:

  • Attempt to modify, reverse-engineer, or otherwise tamper with CybrogenIT systems or software.
  • Use the Services to engage in activities that damage CybrogenIT’s reputation or relationships with third parties.
  • Allow unauthorized third parties to access the Services.

4.11 Financial Obligations

The Customer is responsible for:

  • Paying all fees as outlined in Section 3.
  • Maintaining valid and updated payment information to avoid interruptions in Service.

4.12 Indemnification

The Customer agrees to indemnify and hold CybrogenIT harmless for any claims, damages, or losses arising from:

  • Unauthorized use of the Services.
  • Non-compliance with this Agreement.
  • Customer-provided data that violates laws or third-party rights.

5. CONFIDENTIALITY AND DATA SECURITY

5.1 Confidential Information

  • Definition: “Confidential Information” includes, but is not limited to, proprietary or sensitive information related to either party’s business operations, systems, processes, products, customers, financials, marketing strategies, intellectual property, trade secrets, or other non-public information disclosed during the course of the Agreement.
  • Exclusions: Confidential Information does not include information that:
    • Is or becomes publicly available through no fault of the receiving party.
    • Was already known to the receiving party before disclosure without obligations of confidentiality.
    • Is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
    • Is obtained from a third party who has no obligation of confidentiality.

5.2 Responsibilities of the Parties

  • CybrogenIT’s Responsibilities:
    • CybrogenIT will use commercially reasonable efforts to safeguard the Customer’s Confidential Information.
    • CybrogenIT will limit access to Confidential Information to authorized personnel who need access to perform the Services and who are bound by obligations of confidentiality.
    • CybrogenIT will not use the Customer’s Confidential Information for any purpose other than providing the Services.
  • Customer’s Responsibilities:
    • The Customer agrees to safeguard CybrogenIT’s Confidential Information and not disclose it to any unauthorized parties.
    • The Customer will notify CybrogenIT immediately if they become aware of any unauthorized disclosure or access to CybrogenIT’s Confidential Information.

5.3 Data Security Measures

CybrogenIT employs industry-standard practices to protect the security and integrity of Customer data. These measures include:

  • Access Controls:
    • Multi-factor authentication for system access.
    • Role-based access permissions to restrict data access to authorized personnel.
  • Data Encryption:
    • End-to-end encryption for data transmitted over networks.
    • Encryption of data at rest using industry-standard encryption protocols.
  • Network Security:
    • Firewalls, intrusion detection systems, and regular vulnerability scans to protect against cyber threats.
  • Backup and Recovery:
    • Automated, daily backups with routine testing to ensure data recoverability.
    • Disaster recovery plans to minimize downtime in the event of a breach or system failure.
  • Physical Security:
    • Secure, climate-controlled data centers with 24/7 surveillance and restricted access.

5.4 Data Ownership

  • Customer Data: The Customer retains full ownership of all data shared with or generated through the use of CybrogenIT Services. CybrogenIT does not claim ownership of Customer data.
  • Use of Customer Data: CybrogenIT may access and use Customer data solely for the purposes of providing the Services.

5.5 Breach Notification and Response

  • Notification Obligations:
    • If CybrogenIT becomes aware of an unauthorized access, breach, or compromise of Customer data, CybrogenIT will notify the Customer within 24 hours of discovery.
    • The notification will include:
      • A description of the breach.
      • The type of data affected.
      • Measures taken to mitigate the breach.
      • Recommendations for the Customer to further protect their data.
  • Response Measures:
    • CybrogenIT will promptly investigate the breach and take corrective actions to prevent recurrence.
    • CybrogenIT will provide the Customer with regular updates during the investigation and resolution process.

5.6 Data Retention and Deletion

  • Retention Policy:
    • CybrogenIT will retain Customer data only for as long as necessary to provide the Services or comply with legal obligations.
  • Data Deletion:
    • Upon termination of the Agreement or at the Customer’s request, CybrogenIT will delete or return all Customer data within 30 days, unless retention is required by law or regulatory compliance.
    • Data stored in backups will be securely erased during the next scheduled backup cycle.

5.7 Third-Party Service Providers

CybrogenIT may utilize third-party vendors to support its Services (e.g., cloud storage, email systems).

  • Vendor Compliance: CybrogenIT ensures that all third-party service providers adhere to comparable data security and confidentiality standards.
  • Responsibility for Vendors: CybrogenIT remains responsible for the actions of its third-party providers and any breaches that result from their handling of Customer data.

5.8 Data Privacy Compliance

Both parties agree to comply with applicable data protection laws, including but not limited to:

  • General Data Protection Regulation (GDPR) for Customers in the European Union.
  • California Consumer Privacy Act (CCPA) for California-based Customers.
  • Health Insurance Portability and Accountability Act (HIPAA) if handling protected health information.

CybrogenIT will provide support to the Customer for regulatory audits or compliance assessments, subject to reasonable notice and additional fees for extended services.

5.9 Limitation of Liability for Data Security Incidents

CybrogenIT is not liable for data breaches, losses, or corruption caused by:

  • The Customer’s failure to maintain adequate security measures (e.g., weak passwords, unsecured devices).
  • Unauthorized actions by the Customer’s personnel or third-party vendors not authorized by CybrogenIT.
  • Events outside of CybrogenIT’s control, such as natural disasters or widespread cyberattacks.

5.10 Indemnification for Data Security Breaches

The Customer agrees to indemnify CybrogenIT against claims, damages, or losses arising from:

  • The Customer’s failure to comply with security recommendations.
  • Misuse of Customer data by unauthorized personnel.

5.11 Audit Rights

CybrogenIT reserves the right to conduct periodic audits of its data security systems to ensure compliance with this Agreement. Results of these audits may be shared with the Customer upon request.

6. WARRANTIES AND DISCLAIMERS

6.1 Warranties Provided by CybrogenIT

CybrogenIT represents and warrants the following regarding its Services:

6.1.1 Service Performance

  • CybrogenIT warrants that the Services will be performed:
    • In a professional and workmanlike manner.
    • In accordance with generally accepted industry standards for IT and cybersecurity services.
    • Using personnel with the appropriate expertise, training, and certifications for the tasks assigned.

6.1.2 Compliance

  • CybrogenIT warrants that its Services will comply with all applicable laws and regulations, including data protection laws and industry-specific standards (e.g., HIPAA, GDPR), to the extent applicable to CybrogenIT’s operations.

6.1.3 Software and Tools

  • CybrogenIT warrants that any software or tools provided or used as part of the Services:
    • Are legally licensed or owned by CybrogenIT or its licensors.
    • Are free from known malicious code, viruses, or other harmful components at the time of delivery.

6.1.4 Availability

  • CybrogenIT warrants a minimum uptime of 99.9% for managed IT infrastructure under its control, excluding planned maintenance or circumstances outlined in Section 6.5 (Force Majeure).

6.2 Limitations of Warranties

CybrogenIT’s warranties are subject to the following limitations:

6.2.1 Customer Responsibilities

  • The warranties provided by CybrogenIT are contingent upon the Customer:
    • Providing accurate and complete information necessary for the Services.
    • Following CybrogenIT’s recommendations for system updates, security configurations, and maintenance.
    • Maintaining compliance with the Customer Obligations outlined in Section 4.

6.2.2 Scope of Services

  • Warranties apply only to the specific Services provided under this Agreement and do not extend to:
    • Third-party systems or software not directly managed by CybrogenIT.
    • Issues caused by Customer or third-party modifications to systems without prior approval from CybrogenIT.
    • Services beyond the agreed-upon scope or after termination of this Agreement.

6.3 No Guarantee of Specific Results

While CybrogenIT will employ reasonable efforts to achieve optimal outcomes, the Company does not warrant or guarantee:

  • That the Services will meet all of the Customer’s expectations or specific business objectives.
  • That all potential cybersecurity threats will be identified, mitigated, or prevented.
  • That the Services will result in uninterrupted operation of the Customer’s IT systems, as certain factors (e.g., hardware failures, third-party outages) are beyond CybrogenIT’s control.

6.4 Disclaimers

To the maximum extent permitted by applicable law, CybrogenIT expressly disclaims any and all warranties not explicitly stated in this Agreement, including but not limited to:

6.4.1 Implied Warranties

  • Any implied warranties of merchantability, fitness for a particular purpose, or non-infringement of third-party rights.

6.4.2 Security and Data Integrity

  • While CybrogenIT employs industry-standard practices for security and data protection, it does not warrant:
    • That all security breaches can be prevented.
    • That data will remain entirely secure against unauthorized access or unforeseen cyberattacks.

6.4.3 Third-Party Services

  • CybrogenIT is not responsible for:
    • Failures or delays caused by third-party service providers (e.g., cloud platforms, ISPs).
    • Third-party software or hardware used by the Customer that CybrogenIT does not directly manage or maintain.

6.4.4 Limitation on Remedies

  • CybrogenIT’s sole obligation and the Customer’s exclusive remedy for any breach of warranty shall be for CybrogenIT to:
    • Re-perform the defective portion of the Services, or
    • Refund the fees paid for the defective Services, at CybrogenIT’s discretion.

6.5 Force Majeure

CybrogenIT shall not be liable for delays, failures, or damages resulting from events beyond its reasonable control, including but not limited to:

  • Natural disasters (e.g., floods, earthquakes, hurricanes).
  • Acts of war, terrorism, or civil unrest.
  • Governmental actions or regulations.
  • Power outages or failures of internet service providers.
  • Cyberattacks or malware that exploit previously unknown vulnerabilities.

In the event of a force majeure event, CybrogenIT will notify the Customer as soon as practicable and make reasonable efforts to resume Services promptly.

6.6 Limitation of Liability

CybrogenIT’s liability for any claims arising from the Services is limited as follows:

6.6.1 Maximum Liability

  • CybrogenIT’s total cumulative liability shall not exceed the amount paid by the Customer to CybrogenIT in the six (6) months preceding the claim.

6.6.2 Exclusion of Damages

  • CybrogenIT shall not be liable for any indirect, incidental, special, punitive, or consequential damages, including but not limited to:
    • Loss of business, revenue, profits, or data.
    • Costs of replacement services or equipment.
    • Downtime or service interruptions.

6.7 Customer Indemnification

The Customer agrees to indemnify and hold harmless CybrogenIT from claims, damages, or losses arising from:

  • The Customer’s misuse of the Services.
  • Unauthorized modifications or actions by the Customer or third parties.
  • The Customer’s failure to comply with applicable laws, regulations, or the terms of this Agreement.

6.8 Remedies for Breach of Warranty

If CybrogenIT fails to perform the Services in accordance with the warranties outlined in Section 6.1, the Customer’s sole remedies are:

  • CybrogenIT will re-perform the affected Services at no additional charge, or
  • CybrogenIT will issue a prorated refund for the portion of the Services that were defective or incomplete.

The remedies provided in this section are exclusive and supersede any other remedies available under law or equity.

7. INDEMNIFICATION

7.1 Indemnification by the Customer

The Customer agrees to indemnify, defend, and hold harmless CybrogenIT, its affiliates, officers, directors, employees, agents, contractors, successors, and assigns from and against any and all claims, damages, losses, costs, expenses (including reasonable attorneys’ fees), liabilities, or penalties arising from:

7.1.1 Misuse of Services

  • The Customer’s unauthorized or improper use of CybrogenIT’s Services, systems, or software.
  • The actions or omissions of the Customer’s employees, contractors, or authorized users.

7.1.2 Non-Compliance

  • The Customer’s failure to comply with applicable laws, regulations, or industry standards, including but not limited to:
    • Data privacy and security regulations (e.g., GDPR, HIPAA, CCPA).
    • Software licensing requirements.
    • Export control laws.

7.1.3 Third-Party Claims

  • Any claim or demand by a third party alleging:
    • The Customer’s infringement of intellectual property rights, including unauthorized use of software or data.
    • Damages resulting from the Customer’s breach of this Agreement or the Customer’s actions using the Services.

7.1.4 Customer-Provided Data

  • Any issues arising from data provided by the Customer to CybrogenIT, including:
    • Claims of defamation, invasion of privacy, or infringement of proprietary rights.
    • Inaccuracy, illegality, or non-compliance of Customer-provided data.

7.1.5 Security Breaches

  • Security breaches caused by:
    • The Customer’s failure to implement or maintain adequate security measures, such as weak passwords or unpatched vulnerabilities.
    • The actions of unauthorized third parties who gained access to the Customer’s systems or data through the Customer’s negligence.

7.2 Indemnification by CybrogenIT

CybrogenIT agrees to indemnify, defend, and hold harmless the Customer, its officers, directors, employees, and agents from and against any and all claims, damages, losses, costs, expenses (including reasonable attorneys’ fees), liabilities, or penalties arising from:

7.2.1 Gross Negligence or Misconduct

  • CybrogenIT’s gross negligence, willful misconduct, or failure to perform the Services in accordance with this Agreement.

7.2.2 Third-Party Claims

  • Any claim or demand by a third party alleging:
    • CybrogenIT’s infringement of intellectual property rights in tools, software, or processes used to deliver the Services.
    • CybrogenIT’s unauthorized use or disclosure of the Customer’s Confidential Information.

7.2.3 Violation of Laws

  • CybrogenIT’s violation of applicable laws or regulations during the delivery of Services.

7.3 Indemnification Procedures

To invoke indemnification under this Agreement, the party seeking indemnification (the “Indemnified Party”) must:

7.3.1 Notification

  • Notify the party obligated to provide indemnification (the “Indemnifying Party”) in writing within ten (10) business days of becoming aware of the claim.
  • The notice must include:
    • A description of the claim.
    • All relevant documentation and evidence related to the claim.

Failure to provide timely notice does not relieve the Indemnifying Party of its obligations, except to the extent that the delay prejudices the Indemnifying Party’s ability to defend the claim.

7.3.2 Control of Defense

  • The Indemnifying Party shall have the right to control the defense and settlement of the claim, provided that:
    • The settlement does not impose any obligation on the Indemnified Party other than the payment of money (to be indemnified by the Indemnifying Party).
    • The settlement does not include an admission of fault by the Indemnified Party without its prior written consent.
  • The Indemnified Party retains the right to participate in the defense at its own expense.

7.3.3 Cooperation

  • The Indemnified Party must provide reasonable cooperation and assistance to the Indemnifying Party in defending the claim, including:
    • Providing access to relevant documents and information.
    • Making personnel available for depositions, testimony, or other case-related activities.

7.4 Exclusions from Indemnification

Neither party shall be obligated to indemnify the other for claims arising from:

7.4.1 Acts or Omissions

  • The gross negligence, willful misconduct, or breach of this Agreement by the Indemnified Party.

7.4.2 Unauthorized Use

  • The unauthorized use of tools, systems, or data by the Indemnified Party or its agents.

7.4.3 Force Majeure

  • Claims, damages, or losses resulting from events beyond the control of either party, as outlined in Section 6.5 (Force Majeure).

7.5 Limitation of Indemnification Liability

The liability of the Indemnifying Party under this section is subject to the limitations outlined in Section 6.6 (Limitation of Liability).

7.6 Survival of Indemnification Obligations

The indemnification obligations outlined in this section shall survive the termination or expiration of this Agreement for a period of three (3) years or as long as the applicable statute of limitations allows.

8. TERMINATION

8.1 Termination by Customer

The Customer may terminate this Agreement at any time, subject to the following conditions:

8.1.1 Notice Period

  • The Customer must provide at least thirty (60) days’ prior written notice of termination.
  • The notice must clearly state the intended termination date and include any reasons for termination.

8.1.2 Early Termination Fees

  • If the Customer terminates the Agreement during the Initial Term without cause, an Early Termination Fee will apply, calculated as:
    • The lesser of the remaining balance for the Initial Term or three (3) months of Service fees.

8.1.3 Payment Obligations

  • The Customer must pay all fees accrued up to the effective date of termination.
  • Any pre-paid fees for unused Services are non-refundable unless explicitly stated otherwise in this Agreement.

8.2 Termination by CybrogenIT

CybrogenIT may terminate this Agreement for the following reasons:

8.2.1 Termination for Cause

  • CybrogenIT reserves the right to terminate the Agreement immediately upon written notice if the Customer:
    • Fails to pay any undisputed amounts owed within thirty (30) days of the due date.
    • Materially breaches any provision of this Agreement and fails to cure the breach within ten (10) business days of receiving notice.
    • Engages in illegal activities or violates any applicable law or regulation in connection with the use of the Services.
    • Uses the Services in a manner that damages CybrogenIT’s reputation, systems, or infrastructure.

8.2.2 Termination for Convenience

  • CybrogenIT may terminate the Agreement for convenience by providing the Customer with thirty (30) days’ written notice.
  • In such cases, CybrogenIT will refund any pre-paid fees for unused Services beyond the termination date.

8.3 Automatic Termination

This Agreement will automatically terminate if:

  • The Customer becomes insolvent, files for bankruptcy, or ceases operations.
  • CybrogenIT discontinues the Services offered under this Agreement.

In such cases, CybrogenIT will provide as much prior notice as reasonably possible, and the Customer will not be charged for Services beyond the termination date.

8.4 Effect of Termination

Upon termination of this Agreement, regardless of the cause:

8.4.1 Cessation of Services

  • CybrogenIT will immediately cease providing all Services.
  • The Customer’s access to CybrogenIT-managed systems, software, and tools will be disabled.

8.4.2 Return or Deletion of Data

  • CybrogenIT will, upon the Customer’s written request:
    • Return any remaining Customer data in a standard format.
    • Securely delete all Customer data from CybrogenIT systems within thirty (30) days, unless retention is required by law.

8.4.3 Outstanding Payments

  • All unpaid fees for Services rendered up to the termination date will become immediately due and payable.
  • If the termination occurs for non-payment, the Customer remains responsible for any collection costs incurred by CybrogenIT.

8.4.4 Equipment and Property

  • The Customer must return any CybrogenIT-owned equipment, documentation, or materials provided during the Agreement.
  • If such property is not returned within ten (10) business days, the Customer will be charged the replacement cost.

8.5 Transition Support

To minimize disruptions, CybrogenIT may, at its discretion, provide transition support after termination, subject to the following:

8.5.1 Transition Period

  • Transition support will be available for up to thirty (30) days following termination, unless otherwise agreed in writing.

8.5.2 Additional Fees

  • Transition support services are billed at CybrogenIT’s standard hourly rates, unless included as part of the Agreement.

8.6 Survival of Terms

The following provisions shall survive termination or expiration of this Agreement:

  • Section 5 (Confidentiality and Data Security): Obligations related to the protection of Confidential Information.
  • Section 6 (Warranties and Disclaimers): Limitations of liability and disclaimers.
  • Section 7 (Indemnification): Indemnification obligations.
  • Section 8 (Termination): Post-termination obligations.
  • Section 9 (Governing Law and Dispute Resolution): Procedures for handling disputes.

8.7 Rights to Reinstatement

If termination occurred due to non-payment or breach by the Customer, CybrogenIT may agree to reinstate Services under the following conditions:

  • The Customer resolves the breach or outstanding payment within thirty (30) days of termination.
  • The Customer pays a Reinstatement Fee of $200, in addition to any overdue amounts.

8.8 Mutual Termination Agreement

The Customer and CybrogenIT may mutually agree to terminate this Agreement at any time. Terms of such mutual termination, including any remaining payment obligations or refunds, must be documented in writing and signed by both parties.

8.9 Dispute Resolution and Termination

If either party disputes the termination of this Agreement, the dispute will be handled according to the dispute resolution process outlined in Section 9. Services may remain suspended during the resolution process unless otherwise agreed in writing.

9. GOVERNING LAW AND DISPUTE RESOLUTION

9.1 Governing Law

This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles.

9.1.1 Jurisdiction

  • All disputes, claims, or controversies arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Delaware.
  • The Customer irrevocably consents to the personal jurisdiction of these courts for any legal action arising under this Agreement.

9.1.2 Application of Laws

  • This Agreement complies with applicable local, state, and federal laws. Any provisions deemed invalid under governing laws will be revised to comply with such laws without affecting the validity of the remaining provisions.

9.2 Dispute Resolution Process

CybrogenIT and the Customer agree to resolve disputes through a structured process that includes negotiation, mediation, and, if necessary, arbitration or litigation.

9.2.1 Negotiation

  • Either party may initiate the dispute resolution process by providing written notice of the issue, including details of the claim, supporting evidence, and a proposed resolution.
  • Within ten (10) business days of receiving the notice, both parties will meet (virtually or in person) to negotiate in good faith to resolve the dispute.
  • If the dispute cannot be resolved within thirty (30) days of the initial meeting, the matter may proceed to mediation.

9.2.2 Mediation

  • If negotiation fails, the parties agree to submit the dispute to non-binding mediation facilitated by a neutral third-party mediator.
  • Mediation will be conducted in Delaware or another mutually agreed location, and the costs of mediation will be shared equally by both parties.
  • The mediator’s recommendations are advisory and not binding unless both parties agree to adopt them.

9.2.3 Arbitration

  • If mediation fails to resolve the dispute, the matter may proceed to arbitration as follows:
    • Arbitration will be conducted by a single arbitrator under the rules of the American Arbitration Association (AAA) or another mutually agreed arbitration body.
    • The arbitration will take place in Delaware, and the language of arbitration will be English.
    • The arbitrator’s decision will be final, binding, and enforceable in any court of competent jurisdiction.
  • Each party will bear its own arbitration costs unless the arbitrator awards costs to the prevailing party.

9.2.4 Litigation

  • If arbitration is not elected or is not applicable, either party may pursue litigation in the state or federal courts located in Delaware.
  • The prevailing party in litigation may recover reasonable attorneys’ fees, court costs, and other expenses incurred in pursuing or defending the claim.

9.3 Injunctive Relief

Both parties agree that breaches involving Confidential Information, intellectual property, or data security may result in irreparable harm for which monetary damages are insufficient.

  • In such cases, the non-breaching party may seek immediate injunctive relief in a court of competent jurisdiction without first engaging in the negotiation, mediation, or arbitration process.
  • Injunctive relief will not preclude other remedies available under this Agreement or applicable law.

9.4 Class Action Waiver

The Customer and CybrogenIT agree to waive any right to participate in a class-action lawsuit or class-wide arbitration arising out of or related to this Agreement.

  • All claims must be brought on an individual basis, and the arbitrator or court may not consolidate claims or preside over any class or representative action.

9.5 Limitation on Claims

Any claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after the date the claim accrues, or it will be permanently barred.

  • This limitation does not apply to claims for indemnification, confidentiality breaches, or other obligations that expressly survive termination of the Agreement.

9.6 Waiver of Jury Trial

Both parties knowingly and voluntarily waive any rights to a jury trial in connection with any disputes arising under or relating to this Agreement.

9.7 Costs and Fees

  • Each party will bear its own costs and fees for negotiations, mediation, or arbitration unless otherwise awarded by the arbitrator or court.
  • In litigation, the prevailing party may recover reasonable attorneys’ fees, court costs, and other related expenses.

9.8 Survival of Dispute Resolution Obligations

The obligations in this section will survive termination or expiration of this Agreement and remain enforceable until all disputes are fully resolved.

10. MISCELLANEOUS

10.1 Entire Agreement

  • This Agreement constitutes the entire understanding between CybrogenIT and the Customer concerning the Services and supersedes all prior and contemporaneous agreements, communications, and understandings, whether written or oral.
  • Any amendments or modifications to this Agreement must be made in writing and signed by authorized representatives of both parties.

10.2 Amendments

  • CybrogenIT reserves the right to amend or modify the terms of this Agreement by providing the Customer with at least thirty (30) days’ written notice.
  • If the Customer does not agree to the amended terms, they may terminate the Agreement in accordance with Section 8. Continued use of the Services constitutes acceptance of the revised terms.

10.3 Assignment

  • The Customer may not assign or transfer their rights or obligations under this Agreement without the prior written consent of CybrogenIT.
  • CybrogenIT may assign or transfer its rights and obligations under this Agreement to:
    • An affiliate.
    • A successor entity in the event of a merger, acquisition, or sale of all or substantially all of its assets.
  • Any attempted assignment in violation of this provision is void.

10.4 Notices

  • All notices, requests, or communications required under this Agreement must be in writing and delivered to the respective parties as follows:
    • To CybrogenIT: Delivered to its principal office address or designated email address.
    • To Customer: Delivered to the contact information provided at the time of agreement or as updated in writing by the Customer.
  • Notices are deemed received:
    • By email: Upon confirmation of delivery (e.g., read receipt or no bounce-back).
    • By mail: Three (3) business days after deposit in the mail (certified or registered mail).

10.5 Severability

  • If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect.
  • The invalid provision will be replaced with a provision that closely approximates the intent and economic effect of the original provision.

10.6 Force Majeure

  • Neither party shall be liable for any delay or failure to perform its obligations under this Agreement due to events beyond its reasonable control, including but not limited to:
    • Natural disasters (e.g., floods, earthquakes, hurricanes).
    • Acts of war, terrorism, or civil unrest.
    • Government actions or regulatory changes.
    • Power outages or disruptions to internet services.
    • Widespread cyberattacks or third-party service failures.
  • The affected party must promptly notify the other party of the force majeure event and take reasonable steps to minimize its impact.

10.7 Waiver

  • The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
  • Any waiver must be in writing and signed by an authorized representative of the waiving party.

10.8 Independent Contractors

  • The parties are independent contractors, and nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship.
  • Neither party has the authority to bind or obligate the other party without prior written consent.

10.9 No Third-Party Beneficiaries

  • This Agreement is intended solely for the benefit of CybrogenIT and the Customer.
  • No third party shall have any rights under this Agreement, except as explicitly provided in Section 7 (Indemnification).

10.10 Governing Language

  • This Agreement is written in English, and all communications, notices, and dispute resolutions shall be conducted in English.
  • If this Agreement is translated into another language, the English version will prevail in the event of a conflict.

10.11 Export Control and Compliance

  • The Customer agrees to comply with all applicable export control laws and regulations, including but not limited to:
    • U.S. Export Administration Regulations (EAR).
    • International Traffic in Arms Regulations (ITAR).
    • Applicable sanctions programs administered by the U.S. Office of Foreign Assets Control (OFAC).
  • The Customer represents that they are not located in, or providing Services to entities in, a country subject to U.S. embargoes or trade restrictions.

10.12 Electronic Signatures

  • The parties agree to accept electronic signatures as valid and binding under this Agreement, in accordance with:
    • The Uniform Electronic Transactions Act (UETA).
    • The Electronic Signatures in Global and National Commerce Act (E-Sign Act).
  • Electronic signatures shall have the same legal effect as handwritten signatures.

10.13 Headings

  • Headings and subheadings in this Agreement are for convenience only and shall not affect the interpretation of the provisions.

10.14 Survival

  • Any provisions of this Agreement that by their nature should survive termination or expiration, including but not limited to obligations regarding confidentiality, indemnification, warranties, limitations of liability, and dispute resolution, shall remain in full force and effect.

10.15 Cumulative Remedies

  • All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available under applicable law.

10.16 Joint Drafting

  • This Agreement shall not be construed against either party as the drafter. It is the result of joint efforts and negotiations between CybrogenIT and the Customer.

10.17 Publicity

  • The Customer grants CybrogenIT the right to include the Customer’s name and logo in marketing materials and case studies, unless the Customer opts out in writing.